P. v. Oliver CA1/5

Filed 3/5/13 P. v. Oliver CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A129031 v. MARCUS EDWARD OLIVER, (Contra Costa County Super. Ct. No. 05-090477-1) Defendant and Appellant.

A jury found defendant Marcus Edward Oliver (appellant) guilty on multiple counts alleging sexual misconduct against multiple minors, and the trial court sentenced him to 78 years to life in prison. Appellant raises claims of instructional and sentencing error, and we modify the judgment to strike certain determinate terms improperly imposed by the trial court. Otherwise, we affirm. BACKGROUND1 Appellant was charged by information with 16 counts alleging sexual misconduct against 6 different minors. At trial, the four female victims testified, among other things, that appellant touched their genitals and/or bottoms with his hand, penis, and/or mouth.2

1 Appellant‟s claims on appeal do not require a thorough description of the complex set of charges against appellant or the extensive evidence adduced at trial. 2 Appellant was found not guilty on two counts involving two male victims.

1

Two of the victims testified that appellant inserted his penis into their vaginas; one of the two testified this happened several times, once involving the use of force. In March 2010, a jury found appellant guilty as charged on 12 of the counts, guilty of a lesser offense on one count, and not guilty on the remaining three counts. The charges on which the jury found appellant guilty included six counts of commission of a lewd act on a minor (Pen. Code, § 288, subds. (a), (c)(1))3 (counts 1, 2, 7, 11, 12 & 13); two counts of sexual penetration of a minor (§ 289, subd. (i)) (counts 3 & 4); two counts of assault with intent to commit a lewd act or sexual penetration of a minor (§ 220, subd. (a)) (counts 5 & 6); attempted oral copulation of a minor (§§ 288a, subd. (b)(1), 664) (count 8); and assault with intent to commit rape (§ 220, subd. (a)) (count 10). As to four of the lewd act counts, counts 7, 11, 12 and 13, the jury found true the allegation that appellant committed the offense against more than one victim (§ 667.61, subds. (b), (c) & (e)). On count 14, the jury found appellant guilty of the lesser included offense of battery (§ 242). In June 2010, the trial court sentenced appellant to 78 years to life in prison. This appeal followed. DISCUSSION I. There Is No Reasonable Likelihood the Jury Misunderstood the Elements of Assault with Intent to Commit Rape Appellant contends the trial court‟s instructions led the jury to believe it could find him guilty of assault with intent to commit rape without proof he assaulted the victim. His claim is without merit. “It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury‟s understanding of the case. [Citations.]” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.]” (People v. Holt (1997)